[Cite as State v. Johnson, 2017-Ohio-111.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 16 CAA 100045,
BRIAN A. JOHNSON 16 CAA 100046
Defendant-Appellant
OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 14-CR-I-01-0019
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 10, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL O'BRIEN BRIAN A. JOHNSON, PRO SE
Delaware County Prosecuting Attorney Chillicothe Correctional Institution
P.O. Box 5500
JAHAN KARAMALI Chillicothe, Ohio 45601
Assistant Prosecuting Attorney
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 2
Hoffman, J.
{¶1} Defendant-appellant Brian Johnson appeals the October 4, 2016 Judgment
Entry entered by the Delaware County Court of Common Pleas. Plaintiff-appellee is the
state of Ohio.
STATEMENT OF THE CASE1
{¶2} This case has a lengthy procedural history.
{¶3} On January 17, 2014, the Delaware County Grand Jury indicted Appellant,
Brian Johnson, on four counts of rape in violation of R.C. 2907.02 and four counts of
sexual battery in violation of R.C. 2907.03.
{¶4} A jury trial commenced on May 20, 2014. Four of the counts were amended
to attempted offenses and Appellant was found guilty as charged. By judgment entry filed
July 8, 2014, the trial court merged some of the offenses and sentenced Appellant to an
aggregate term of fourteen years in prison.
{¶5} Appellant filed a direct appeal and this court affirmed his convictions and
sentence. State v. Johnson, 5th Dist. Delaware No. 14CAA070039, 2015–Ohio–1676,
appeal not accepted, 43 Ohio St .3d 1501, 2015–Ohio–4468. Appellant applied to reopen
his appeal which the Supreme Court of Ohio declined to review on March 23, 2016. State
v. Johnson, 145 Ohio St.3d 1425, 2016–Ohio–1173.
{¶6} On February 26, 2015, Appellant filed a petition for post-conviction relief
focusing on ineffective assistance of counsel. By a thorough and lengthy judgment entry
filed March 12, 2015, the trial court denied the petition without a hearing. Appellant filed
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 3
an appeal which this court dismissed for unauthorized practice of law. State v. Johnson,
5th Dist. Delaware No. 15 CAA 03 0027.
{¶7} On October 21, 2015, Appellant filed another petition for post-conviction
relief which the trial court denied the next day as a successive petition not meeting the
requirements of R.C. 2953.23(A)(1). Appellant filed an appeal and this court affirmed the
trial court's decision. State v. Johnson, 5th Dist. Delaware No. 15 CAA 11 0092, 2016–
Ohio–1213, appeal not accepted, 146 Ohio St.3d 1471, 2016–Ohio–5108.
{¶8} On November 25, 2015, Appellant moved for appointment of counsel which
the trial court denied on November 30, 2015. Appellant filed an appeal which this court
dismissed for want of prosecution. State v. Johnson, 5th Dist. Delaware No. 15 CAA 12
0096.
{¶9} On March 3, 2016, Appellant filed a motion for resentencing which the trial
court denied on the same day. Appellant filed an appeal and this court affirmed the trial
court's decision, but remanded the matter to the trial court to issue a nunc pro tunc
sentencing entry stating the rape sentences are mandatory. State v. Johnson, 5th Dist.
Delaware No. 16CAA030011, 2016–Ohio–4617. Appellant did not appeal to the Supreme
Court of Ohio. Instead, Appellant filed a motion for reconsideration which this court denied
on October 20, 2016.
{¶10} On June 24, 2016, the trial court issued a nunc pro tunc judgment entry as
directed by this court.
{¶11} On July 21, 2016, Appellant filed a second motion for resentencing which
the trial court denied on July 22, 2016. Appellant filed an appeal from the entry in Fifth
District Case No. 2016CAA08033.
Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 4
{¶12} On August 23, 2016, Appellant filed a motion to strike the June 24, 2016
nunc pro tunc correction of the sentencing entry for lack of subject matter jurisdiction and
fraud upon the court.
{¶13} On the same date, Appellant filed a third motion for resentencing based on
the unconstitutionality of statute, rendering the judgment void and voidable.
{¶14} The trial court denied the motion for resentencing and the motion to strike
on August 23, 2016. Appellant filed an appeal to this Court in Case No. 2016CAA080037.
{¶15} On October 3, 2016, Appellant filed a first motion for relief from judgment or
order pursuant to Ohio Civil Rule 60(B). The trial court denied the motion via Judgment
Entry of October 4, 2016.
{¶16} On October 12, 2016, Appellant filed a second motion for relief from
judgment or order pursuant to Ohio Civil Rule 60(B). The motion was denied via Judgment
Entry of October 13, 2016.
{¶17} In Appellate Number 16CAA100045, Appellant filed an appeal from the
October 4, 2016 judgment entry denying his first motion for relief from judgment or order
pursuant to Ohio Civil Rule 60(B).
{¶18} In Appellate Number 16CAA100046, Appellant filed an appeal from the
October 13, 2016 Judgment Entry.
{¶19} Both appeals were assigned to this Court's accelerated calendar. Pursuant
to Ohio Appellate Rule 11.1(E),
(E) Determination and Judgment on Appeal. The appeal will be
determined as provided by App. R. 11.1. It shall be sufficient compliance
Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 5
with App. R. 12(A) for the statement of the reason for the court's decision
as to each error to be in brief and conclusionary form.
The decision may be by judgment entry in which case it will not be
published in any form. (See Form 3, Appendix of Forms.)
Ohio App. R. 11.1
{¶20} In Case No. 16CAA100045, Appellant assigns as error,
DEFENDANT-APPELLANT'S FUNDAMENTAL & SUBSTANTIAL
RIGHT TO A FAIR TRIAL UNDER EQUAL PROTECTION, SUBSTANTIVE
AND PROCEDURAL DUE PROCESS OF THE LAW, GUARANTEED BY
THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION;
ARTICLE I, SECTION 2 & 16 OF THE OHIO CONSTITUTION, WAS
VIOLATED; WHEN THE TRIAL COURT FAILED TO COMPLY WITH
STATUTORY PRIVISIONS [SIC], CONTRARY TO OHIO EVID. R. 104(A);
EVID. R. 601(A); R.C. 2317.01; THEREBY, FAILING TO SUA SPONTE
CHECK THE COMPETENCY OF A PRESUMED MENTALLY
INCOMPETENT & DISABLED ALLEGED VICTIM WITNESS PRIOR TO
RECEIVING HER TESTIMONY AT TRIAL; THEREFORE, THE COURT
LACKED THE JURISDICITON TO RECEIVE THE TESTIMONY,
RENDERING IT INADMISSIBLE AND APPELLANT'S CONVICTION VOID
AB INITIO; THUS, RESULTING IN FRAUD UPON THE COURT,
Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 6
MANIFEST, PLAIN PREJUDICIAL ERROR & A MISCARRIAGE OF
JUSTICE.
{¶21} In Case No. 2016CAA100046, Appellant assigns as error,
DEFENDANT-APPELLANT'S FUNDAMENTAL & SUBSTANTIAL
RIGHT TO A [SIC] IMPARTIAL JURY AND FAIR TRIAL UNDER EQUAL
PROTECTION, SUBSTANTIVE AND PROCEDURAL DUE PROCESS OF
THE LAW, GUARANTEED BY THE 6TH & 14TH AMENDMENTS TO THE
UNITED STATES CONSTITUTION; WAS VIOLATED; WHEN THE TRIAL
COURT FAILED TO SUA SPONTE VOIR DIRE THE JURY ON THE BASIS
OF RACIAL PREJUDICE OR BIAS, RESULTING IN PLAIN PREJUDICIAL
ERROR & A MISCARRIAGE OF JUSTICE.
{¶22} Upon review of Appellant's arguments, Appellant's complained of errors do
not result in the trial court's lack of jurisdiction, nor do the alleged errors render Appellant's
convictions void. Therefore, we find Appellant's arguments barred under the doctrine of
res judicata, as the issues were raised or capable of being raised on direct appeal.
Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 7
{¶23} The judgment of the Delaware County Court of Common Pleas is affirmed.
By: Hoffman, J.
Farmer, P.J. and
Delaney, J. concur
Delaware County, Case No. 16 CAA 100045, 16 CAA 100046 8